Terrorism and the First Amendment

The right way to limit dangerous speech.

Gary Schmitt

January 23, 2012, Vol. 17, No. 18

The left has not been happy with the Obama administration’s handling of the war on terror for some time now. In addition to leaving Guantánamo open, the administration has maintained Bush-era practices such as open-ended detention for terrorist suspects, reaffirming the “state secrets” privilege, and expanding exponentially the use of drone strikes (including against American citizens). Then just before Christmas, in Boston, the administration successfully prosecuted Tarek Mehanna, a pharmacy college graduate, on various terrorism-related charges—a case the local ACLU has described as being “used by the government to really narrow First Amendment activity in dangerous new ways.”

Certainly, the government had plenty of reasons to worry about Mehanna. He talked about the morality of engaging in violent jihadist acts with friends, searched for ways to receive terrorist training, traveled to Yemen in a failed effort to find that training, schemed about ways to travel to Iraq to kill U.S. soldiers fighting there, and discussed with friends the possibility of a terrorist attack on an American shopping mall.

In addition, Mehanna translated into English various jihadist materials and had them distributed as part of a design, according to the government, to “radicalize” and “inspire” others. As he told a friend, he considered Osama bin Laden his intellectual “father” and, in turn, saw his advocacy efforts as making himself part of al Qaeda’s “media wing.”

On the face of it, the government’s case against the Massachusetts Muslim for lying to government investigators and conspiring to kill American soldiers abroad was sufficiently strong to ensure a conviction. The more problematic element of the case, however—and what makes it of interest from the point of view of constitutional law—was whether his advocacy activities constituted punishable “material support” to a terrorist organization (weapons, money, training, or expert assistance, for example) or whether they were speech protected by the First Amendment.

The government’s case in this regard had its weaknesses. First, there is a question whether the “material support” statute should be read to encompass advocacy. Clearly, Mehanna’s efforts were supportive of al Qaeda, but on its face the law appears to apply only to speech that constitutes training or imparts a specific skill or expert advice. Indeed, the statute explicitly states that its provisions should not be “construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment.”

The second issue is the requirement, affirmed by the Supreme Court in Holder v. Humanitarian Law Project (2010), that the material support statute “reaches only material support coordinated with or under the direction of a designated foreign terrorist organization. Independent advocacy that might be viewed as promoting the group’s legitimacy is not covered.” Here, again, the prosecution appeared to be stretching the facts in the case. The evidence was thin that Mehanna was acting at the direction of a designated terrorist organization, and the government was reduced to arguing (in part) that this requirement was satisfied by the fact that he was responding to a general call by al Qaeda to spread its message and conspiring with others to do so. As Boston College law professor George Brown has noted, the federal government was “pushing the statute . . . to prosecute potential terrorists further in this case than in any other.”

Moreover, it is difficult to see how the government’s case against Mehanna can be squared with Brandenburg v. Ohio (1969), which for more than four decades has been the standing rule when it comes to limiting speech. There, the Supreme Court held that speech cannot be criminalized unless it is meant to incite “imminent lawless action” and is likely to do so. In reaching this finding, the justices overturned an Ohio statute that prohibited speech advocating violence, including “methods of terrorism.”

From the ACLU’s point of view, the fact that Mehanna’s advocacy efforts “may be offensive or disagreeable, or that they may ‘create like-minded youth’ ”—a phrase used by the government—“is of no consequence” when set against the First Amendment. But, of course, it is of considerable consequence to the government and the population it is sworn to protect if such advocacy increases homegrown terror. This is why other liberal democracies like France and the United Kingdom have laws on their books criminalizing the advocacy and glorification of terrorism.

Paradoxically, the majority in Brandenburg extols freespeech, but at the cost of implicitly underestimating the power of speech itself. As al Qaeda and its jihadist allies know all too well, speech educates and can provide an intellectual milieu that, over time and unconnected to any particular acts or specific direction from an organization, elicits the kind of terrorist behavior that the government is legitimately in the business of preventing.

Rather than have the government stretch the meaning of statutes and evidence, Congress and the president should enact a statute that straightforwardly makes it illegal to publish or circulate materials that support, praise, or advocate terrorism as long as we are still formally at war with al Qaeda and its allies. Such a law would not require a return to a more sweeping limit on speech built on past broad notions of sedition. Rather, returning to the “clear and present danger” standard put forward by Justice Holmes in Schenck v. United States (1919) would be sufficient, as long as “present danger” is not understood to mean the far more restrictive “imminent danger.” Sensibly drawn, the measure would provide sufficient leeway for citizens to engage in legitimate journalism and criticism, however harsh, of government policies.

No doubt such a law would be challenged by civil libertarians, but if nothing else it would give the Supreme Court a chance to treat Brandenburg for the anomaly it is—a decision like so many in the Warren Court-era that is more libertarian than necessary under the Constitution and burdens the government unnecessarily in carrying out its duty to protect the lives and property of citizens.

Gary Schmitt is a resident scholar, director of Advanced Strategic Studies, and director of the Program on American Citizenship at the American Enterprise Institute.